New trial ordered in Winneconne heroin overdose case

MADISON – An appeals court Tuesday gave an Oshkosh man a second chance to prove he did not provide the heroin that caused a Winneconne man's fatal overdose in 2011.

The District III Court of Appeals ordered a new trial for Jason S. VanDyke concluding that his attorney did not provide effective assistance at the trial that resulted in VanDyke's first-degree reckless homicide conviction and 15-year prison sentence imposed by Circuit Judge Thomas Gritton.

VanDyke, 35, was charged under the state's Len Bias law after a toxicology report indicated Cole R. Trittin died from heroin overdose. Winnebago County prosecutors alleged that VanDyke gave Trittin, 25, the heroin in Oshkosh on April 13, 2011 and again hours later at a Park and Ride lot in Winneconne.

At trial, the prosecution introduced the toxicology report conducted by a pathologist at St. Louis University. Chief Medical Examiner Douglas Kelly testified that he conducted Trittin's autopsy but requested an out-of-state lab perform the toxicology test.

No one involved in the toxicology analysis testified at trial and the failure of VanDyke's trial attorney, Daniel Muza, to object to admitting the report as evidence violated VanDyke's constitutional right to confront his accuser, according to the appeals opinion.

"(B)ecause Kelly served as a mere conduit for the toxicology report and was unable to offer an independent cause-of-death opinion, the violation was prejudicial," to VanDyke's defense, Judge Michael Hoover wrote in the 14-page opinion.

On appeal, the state argued that Kelly used the lab report only to confirm his ruling of death by heroin toxicity. However, the District III Court rejected the argument finding that Kelly never testified that he believed Trittin died from heroin toxicity prior to reviewing the report.

Assistant District Attorney Eric Sparr, who prosecuted VanDyke, expected to get the case back.

"We would bring someone in from the St. Louis lab to testify…that's pretty clear (from the opinion)," he said.

A spokesperson for the attorney general's office, which handled the appeal, did not respond to a request for comment before deadline.

VanDyke's appeals attorney, Matthew Pinix, of Milwaukee, said he was "very pleased with the decision…and Mr. VanDyke should be very excited."

The defendant's right to confront an accuser was most recently spelled out in a 2006 U.S. Supreme court decision that allows a defendant to cross examine anyone who testifies against him, said Pinix, who was surprised the appeals court needed to point that out in this case.

"We're in the realm where if (the state) relies on statements of others they must bring those (people) into court," Pinix said.

If the report's author or other knowledgably person cannot testify at VanDyke's second trial the state will have a hard time proving there was heroin in Trittin's blood, and he died of an overdose, Pinix said.

VanDyke is incarcerated at the Columbia Correctional Institution in Portage, according to online records.